The Humane Society of the United States (HSUS) has sued the U.S. Department of Agriculture (USDA) seeking to end payments made to the National Pork Producers Council (Pork Council) for the purchase of the registered mark “Pork, The Other White Meat.” HSUS v. Vilsack, No. 12-01582 (D.D.C., filed September 24, 2012). According to the complaint, which details the circumstances leading to the mark’s creation, development and use, the Pork Council should not have retained ownership of the mark, and the $60-million, 20-year contract for its purchase should have been terminated when USDA decided to retire the mark and create a new one. HSUS contends that the contract is funded with pork-producer checkoff program dollars, which cannot be used for lobbying. Because the Pork Council is a lobbying organization, HSUS claims that the ongoing payments under the purchase agreement violate federal law. HSUS seeks a declaration that these expenditures of checkoff…
Category Archives Litigation
A federal court in New York has dismissed with prejudice claims that Mario Batali’s Del Posto restaurant allegedly retained portions of workers’ tips in violation of federal and state labor laws after approving an agreement requiring the defendants to pay $1.15 million into a settlement fund and provide workers with training and paid vacation time and sick leave. Amastal v. Pasta Resources, Inc., No. 10-07748 (S.D.N.Y., order entered September 24, 2012). Additional information about the lawsuit can be found in Issue 368 of this Update. The 31 plaintiffs in this lawsuit had opted out of a similar class action involving captains, servers, waiters, bussers, runners, backwaiters, bartenders, and barbacks at Del Posto and seven other restaurants; the class action apparently concluded with a $5.25 million settlement deal preliminarily approved in May. Details about the class action appear in Issues 361 and 430 of this Update. The deal also apparently releases claims…
A federal court in New York has denied a motion to dismiss a consumer fraud action against the company that makes Four Loko®, a beverage allegedly containing high alcoholic and caffeine content and sold without disclosing “possible negative health effects.” Yourth v. Phusion Projects, LLC, No. 11-1261 (N.D.N.Y., decided September 27, 2012). The defendant contended that the court lacked subject matter jurisdiction on the ground of mootness “because defendant has offered ‘to fully refund any amounts that Plaintiff paid for Four Loko as well as any fees and costs he incurred.’” Noting that the circuit courts have split over whether a defendant can moot a putative class action by offering to satisfy the plaintiff’s demand before a motion for class certification is filed, the court concluded that “unless plaintiff has unduly delayed in moving for certification, defendant’s offer of full relief does not moot the action.” According to the court,…
A California resident has filed a putative nationwide class action with a California subclass against a company that makes low-calorie frozen desserts that allegedly have as much as 68 percent more calories than touted on the product label. Freeman v. Arctic Zero, Inc., No. 12-2279 (S.D. Cal., filed September 18, 2012). Similar putative class claims filed by another California resident in August are summarized in Issue 451 of this Update. According to plaintiff Brenda Freeman, “[c]onsumers do not receive the benefit of their bargain because the actual calorie content of the Frozen Desserts is up to 68 percent higher than Arctic Zero prominently represents on the front of the product packaging, on the nutritional label, and in Arctic Zero’s other marketing materials.” She cites testing on the company’s Chocolate Peanut Butter and Vanilla Maple products showing them to be higher in calories than the 150 calories per pint on package…
A Florida resident has filed a putative statewide class action alleging that Frito-Lay falsely labels its snacks, including “Bean Dip products,” as “ALL NATURAL” despite the use of ingredients—particularly soy—containing genetically modified organisms (GMOs). Altman v. Frito-Lay N. Am., Inc., No. 12-61803 (S.D. Fla., filed September 13, 2012). The gist of the complaint is that products containing GMOs should not be labeled “all natural” unless they also disclose that the products contain GMOs. The plaintiff contends that she would not have purchased the company’s bean dip if she had known the company “could not support its claim that the Product is all natural.” Seeking to represent a class of Florida consumers who purchased Frito-Lay “All Natural” products over the past four years, the plaintiff alleges violations of the state’s Deceptive and Unfair Trade Practices Act and unjust enrichment. She requests injunctive relief, restitution, actual damages, punitive damages, attorney’s fees, costs,…
The day after a California court apparently refused to approve the settlement of class claims against the company that makes “All Natural Ben & Jerry’s Ice Cream,” an Illinois resident filed a putative class action against the company in a New Jersey federal court, alleging that the product contains many unnatural ingredients including those that are genetically modified. Tobin v. Conopco, Inc., No. 12-5881 (D.N.J., filed September 13, 2012). The named plaintiff seeks to represent a nationwide class of individuals who purchased the products since 2006 relying on the allegedly false “all natural” label. According to the complaint, the Center for Science in the Public Interest (CSPI) tested the company’s products in 2010 and found that they contain “alkalized cocoa, corn syrup, partially hydrogenated soybean oil, or other ingredients that either don’t exist in nature or that have been chemically modified.” CSPI’s letter to the manufacturer, claiming that the products…
Finding that California law applies to a dispute between Costco Wholesale Corp. and Nationwide Mutual Insurance Co., a federal court has dismissed Costco’s claims for violations of Washington state law and for bad faith coverage by estoppel arising out of the insurer’s refusal to handle claims of personal injury from cheese that Costco sold. Costco Wholesale Corp. v. Nationwide Mut. Ins. Co., No. 11-1550 (W.D. Wash., Seattle, decided September 20, 2012). The court determined that, under the “most significant relationship” test applied in the context of a conflict of laws, “the most significant contacts between Costco and Nationwide occurred in California.” Because California law does not provide relief as to a number of Costco’s claims, the court dismissed them but gave the company the opportunity to amend the complaint by November 1, 2012. If it does not do so, the matter will be dismissed.
A federal court has reportedly denied the request of Canadian and U.S. foie gras producers to preliminarily enjoin the enforcement of California’s law barring the sale of food products made from force-feeding birds. Association des Éleveurs de Canards et d’Oies du Québec v. Harris, No. 12-5735 (U.S. Dist. Ct., C.D. Cal., order entered September 19, 2012). More information about the case appears in Issue 446 of this Update. According to a news source, the court will issue a formal ruling on its denial of injunctive relief at a later date. A hearing on the state’s motion to dismiss the lawsuit is scheduled for November 19. See Law360, September 20, 2012.
A federal court in Rhode Island has reportedly agreed to enter a default judgment of $33 million against a spice company purportedly involved in a 2010 Salmonella outbreak affecting a salami product that sickened more than 250 people in 44 states. Daniele Int’l, Inc. v. Wholesome Spice & Seasonings, Inc., No. 10-155 (D.R.I., decided September 17, 2012). The court granted the request for default judgment filed by meat producer Daniele International, which was forced to recall in excess of 1.2 million pounds of meat. Health officials traced the contamination to the pepper supplied by the defendant, a company that was reportedly dissolved in April 2012. According to a news source, Daniele’s counsel is uncertain whether they will be able to collect the judgment. See The Wall Street Journal, September 17, 2012.
While a federal court in Florida has dismissed a putative class action alleging that Target Corp. violates consumer fraud laws by selling honey that does not conform to the state’s honey standard, it gave the plaintiff leave to amend the complaint and also found that (i) the plaintiff had standing to bring the claims, (ii) Federal Rule of Civil Procedure 9(b)’s heightened pleading standard did not apply, and (iii) the claims were not preempted by federal law. Guerrero v. Target Corp., No. 12-21115 (S.D. Fla., decided September 4, 2012). The court dismissed the complaint without prejudice because it failed “to provide any more specific details regarding how Plaintiff knows that Defendant’s honey did not contain pollen. Thus, the Court agrees with Defendant’s argument that Plaintiff’s Complaint, as currently plead (sic), fails to state a claim because it does not provide fair notice to Defendant regarding the factual basis for Plaintiff’s…
